Rudd-Birkenbach v. Birkenbach Estate et al., (2015) 604 A.R. 97 (QB)

• Judge: Wilson, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: January 02, 2015
• Citations: (2015), 604 A.R. 97 (QB);2015 ABQB 3

Rudd-Birkenbach v. Birkenbach Estate (2015), 604 A.R. 97 (QB)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. JA.086

Philipp Theodore Rudd-Birkenbach (applicant) v. Edward Starratt, Personal Representative of the Estate of Albert Birkenbach, Melodie Birkenbach, Angela Birkenbach, Lionel Birkenbach (respondents)

(ES01 105829; 2015 ABQB 3)

Indexed As: Rudd-Birkenbach v. Birkenbach Estate et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Wilson, J.

January 2, 2015.

Summary:

Birkenbach made a will in 1981 in which he divided his estate equally among his three children (the beneficiaries). Birkenbach had a fourth child (Philipp) in 1991 and a fifth child (Maggie) in 2002, but he never revised his will. At the time of Birkenbach's death, his estate was valued at over $46 million. Each of the beneficiaries received $9.5 million. Maggie brought a Dependants Relief Act claim against the estate which was settled confidentially. After discharging various other expenditures, the balance of the estate to be distributed was approximately $11.7 million. Philipp, who was 17 years old at the time of Birkenbach's death, applied pursuant to the Act for an award of $9.5 million.

The Alberta Court of Queen's Bench awarded Philipp $3 million from the estate.

Family Law - Topic 6600

Dependents' relief legislation - General principles - Purpose of legislation - [See Family Law - Topic 6635 ].

Family Law - Topic 6601

Dependents' relief legislation - General principles - General (incl. interpretation of legislation) - The Alberta Court of Queen's Bench considered the differences between Alberta's Dependents Relief Act and British Columbia's Wills Variation Act - In Alberta, an applicant's claim for adequate and proper maintenance had to be assessed from the standpoint of his or her needs and maintenance - This was unlike British Columbia, where the courts tended to make awards based on equitable considerations and the moral duty owed by the deceased - See paragraphs 27 to 47.

Family Law - Topic 6604

Dependents' relief legislation - What constitutes "proper maintenance and support" - [See Family Law - Topic 6706 ].

Family Law - Topic 6635

Dependents' relief legislation - Persons entitled to relief - Child - General - Philipp applied under the Dependents Relief Act for an award of $9.5 million from his father's estate - The Alberta Court of Queen's Bench found that Philipp's claim was based on heredity rather than dependency - The limiting rule suggested by the case law was that an application under the Act should not result in the building up of an estate for a dependent so that wealth was passed on from the dependent to his beneficiaries - This made good sense since a dependent's relief claim was, by definition, for the benefit of the dependent applicant - The court agreed that "A child's claim to a deceased parent's estate is even more far removed than that of the surviving spouse. Unlike a spouse, a child is not the financial partner of the parent deceased. A child does not have an expectation of financial sharing during the testator's life in the same way that a spouse does. A child of the deceased has no right to amass an estate under the guise of a dependant's relief application." - See paragraphs 118 to 123.

Family Law - Topic 6673

Dependents' relief legislation - Entitlement - Where adequate provision for dependent not made in will - [See Family Law - Topic 6706 ].

Family Law - Topic 6680

Dependents' relief legislation - Considerations in making awards - General - [See Family Law - Topic 6635 ].

Family Law - Topic 6689

Dependents' relief legislation - Considerations in making awards - Economic status of claimant - [See Family Law - Topic 6706 ].

Family Law - Topic 6694

Dependents' relief legislation - Considerations in making awards - Other provision for maintenance and support - [See Family Law - Topic 6706 ].

Family Law - Topic 6695

Dependents' relief legislation - Considerations in making awards - Intention of testator - [See Family Law - Topic 6706 ].

Family Law - Topic 6706

Dependents' relief legislation - Awards - Lump sum payments - Children - Birkenbach's 1981 will divided his estate equally among his three children (the beneficiaries) - Birkenbach had a fourth child (Philipp) in 1991 and a fifth child (Maggie) in 2002, but he never revised his will - When Birkenbach died in 2009, his estate was worth over $46 million - Each beneficiary received $9.5 million - Maggie's claim under the Dependants Relief Act was settled confidentially - The balance of the estate to be distributed was approximately $11.7 million - Philipp applied pursuant to the Act for $9.5 million - The beneficiaries argued that it was Birkenbach's testamentary intention not to alter his will to include Philipp and, in any event, adequate provision for Philipp's maintenance and support was provided for in a divorce settlement between Birkenbach and Philipp's mother under which Philipp received almost $470,000 for the period May 2009 to April 2013 - The Alberta Court of Queen's Bench held that the amount Philipp received up to April 2013 was appropriate for his claim covering that time period - Going forward, and taking into account the $200,000 interest he had in his mother's residence, the court awarded Philipp $3 million - The most important factor was Philipp's significant and pervasive dyslexia which caused uncertainty respecting his employment and education - Philipp should never have to look to the public purse for income support given the size of the estate - Nor should he be constrained in having all required supports in place if he wished to pursue further education - Birkenbach had not revised his will because he was waiting to see how the litigation involving support claims by his former spouses would be resolved - This was evidence of "testator inaction" rather than "testator intention" - See paragraphs 49 to 130.

Cases Noticed:

C.D. v. Spinelli Estate (1998), 229 A.R. 137; 1998 ABQB 966, refd to. [para. 20].

V.T.D. v. Spinelli Estate - see C.D. v. Spinelli Estate.

Tataryn et al. v. Tataryn Estate, [1994] 2 S.C.R. 807; 169 N.R. 60; 46 B.C.A.C. 255; 75 W.A.C. 255, refd to. [para. 21].

Bosch v. Perpetual Trustee Co., [1938] A.C. 463, refd to. [para. 22].

Maitland Public Trustee v. Maitland Derricott and Maitland (1954), 1 D.L.R. 657 (Alta. C.A.), refd to. [para. 22].

Walker v. McDermott, [1931] S.C.R. 94, refd to. [para. 23].

Boje Estate, Re (2005), 363 A.R. 288; 343 W.A.C. 288; 2005 ABCA 73, refd to. [para. 24].

Lafleur Estate, Re (2014), 601 A.R. 295; 2014 ABQB 698, folld. [para. 26].

Tomich Estate, Re (2011), 505 A.R. 372; 522 W.A.C. 372; 2011 ABCA 186, refd to. [para. 27].

Gray, Re, [1950] 2 W.W.R. 854 (Alta. T.D.), refd to. [para. 28].

Willan, Re (1951), 4 W.W.R.(N.S.) 114 (Alta. T.D.), consd. [para. 28].

Cummings Estate, Re (2004), 181 O.A.C. 98; 235 D.L.R.(4th) 474 (C.A.), refd to. [para. 28].

Siegel v. Siegel Estate et al. (1995), 177 A.R. 282 (Q.B.), refd to. [para. 29].

Tataryn et al. v. Tataryn Estate (1992), 20 B.C.A.C. 218; 35 W.A.C. 218; 98 D.L.R.(4th) 717 (C.A.), refd to. [para. 33].

Soule v. Johansen Estate et al. (2011), 521 A.R. 238; 2011 ABQB 403, folld. [para. 43].

Petrowski v. Petrowski Estate et al. (2009), 466 A.R. 59; 2009 ABQB 196, refd to. [para. 44].

Stang v. Stang Estate (1998), 215 A.R. 373 (Q.B.), refd to. [para. 44].

Pauliuk v. Pauliuk Estate (1986), 73 A.R. 314 (Q.B.), refd to. [para. 97].

Kiernan v. Stach Estate (2009), 465 A.R. 261; 2009 ABQB 150, refd to. [para. 121].

Counsel:

Joseph T. Schuck and Peter R.S. Leveque, for the applicant;

Michael Waite and Bobby Randhawa, for the respondents, Melodie and Lionel Birkenbach;

Tiffany Franklin, for the respondent, Edward Starratt, personal representative of the Estate of Albert Birkenbach;

Angela Birkenbach, respondent, representing herself.

This application was heard on December 1-5, 8, 10 and 11, 2014, before Wilson, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following reasons for judgment on January 2, 2015.